In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.
In this case, the plaintiff was a female police officer who had returned from maternity leave. Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding. The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused. As a result, the officer resigned and filed a lawsuit.
The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA. In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.) Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries. As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.
Take Home for Employers
The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume. Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.
NOTE: There are also many state laws that provide protections for pregnant employees. Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.
The Michigan Department of Civil Rights has made substantial changes to the Michigan Civil Rights poster (i.e. the “Michigan Law Prohibits Discrimination poster”).
The major change in the new poster is the addition of new language addressing an accommodation of disabilities under the Michigan Persons with Disabilities Civil Rights Act (MPWDA). Specifically, the poster now includes the following:
Persons with disabilities needing accommodation for employment must notify their employers in writing within 182 days.
This new language is based on the provision in the MPWDA relating to an employee’s need for accommodation. Under the statute
A person with a disability may allege a violation against a person regarding a failure to accommodate under this article only if the person with a disability notifies the person in writing of the need for accommodation within 182 days after the date the person with a disability knew or reasonably should have known that an accommodation was needed. MCL §37.1210(18)
According to the Michigan Department of Civil Rights, businesses are not required to include information about this accommodations-related time limit as part of this anti-discrimination posting. In other words, the posting of this updated notice is optional.
However, as a best practice, we recommend that Michigan employers post this updated notice in a conspicuous place in the workplace as soon as possible. The new Michigan Civil Rights poster is available in English, Spanish, and Arabic.
Finally, we further recommend that all Michigan employers update their disability accommodation policy in their employee handbook to include language notifying employees of their need to inform their employer about a need for accommodation in writing within 182 days of when the employee knew or reasonably should have known that an accommodation is needed.
According to a recently filed EEOC lawsuit, a company’s refusal to hire a disabled veteran because he used a service dog constitutes disability discrimination in violation of an ADA.
Basis of Lawsuit
A disabled veteran applied for a truck driver position with a national trucking company and signed up the for company’s drivers’ certification course with its partner company. Before completing the program, the veteran informed the company that he suffered from PTSD and uses a service dog to control his anxiety. He informed the company that he would need the dog to accompany him on the road in order to manage his disability. The company refused to engage in the interactive process with the veteran and did not explore other methods of accommodating the veteran’s request. Instead, the company dismissed him from a new driver orientation program.
The EEOC further alleged that after the veteran’s termination, the company developed a new “Service Dog Process” to address accommodation requests seeking the use of a service dog, but the veteran was not given the opportunity to qualify for accommodation under the new policy.
Take Home for Employers
While this lawsuit has only recently been filed and is not yet resolved, there are implications for employers. Currently, the ADA does not address whether permitting the use of a service animal (and more particularly a service animal for emotional support services) is a reasonable accommodation in the employment context.
However, this lawsuit may be an indication of the EEOC taking a new stance with respect to employers permitting employees to use service animals in the workplace as a reasonable accommodation – especially for emotional support services.
Employers should remember that regardless of the disability (and the accommodation requested), they have an obligation to engage in the interactive process to determine whether the employee’s request for accommodation is appropriate and/or causes the employer an undue hardship.
On July 11, 2016, Massachusetts Governor Charlie Baker signed Senate Bill 735 into law. This law sets forth new protections for transgender individuals living (and working) in Massachusetts.
This new law allows transgender individuals to use restrooms, changing rooms, and locker rooms that match their gender identities rather than their sex assigned at birth. In addition, it prohibits advertising that discriminates on the basis of gender identity and protects transgender individuals from discrimination in places of public accommodation.
Massachusetts employers are already prohibited from discriminating against employees on the basis of gender identity. However, under the new law, those employers who qualify as places of “public accommodation” (defined as “any entity that offers the provision of goods, services, or access to the public” – including employers in the retail, hospitality, or healthcare sectors) must be prepared to allow transgender employees to use the bathroom that corresponds with their gender identity.
With the exception of the provision relating to advertising (which goes into effect immediately), the new law goes into effect on October 1, 2016. It is recommended that all Massachusetts employers train their managers and HR staff about how to properly accommodate a transgender employee. This may include engaging in the interactive process with the employee to plan for the transition by discussing the following topics:
- Dress –when the employee plans to begin dressing according to their gender identity,
- Bathrooms — when the employee would like to start using the bathroom that corresponds with their gender identity,
- Name change — when and if the employee plans to change his/her name and
- Communication — when and how the employee wants this change to be communicated to his/her coworkers.
In a previous blog entry, it was mentioned that the Department of Justice (“DOJ”) was expected to announce its amendments to the regulations implementing titles II and III of the ADA, which require web site accessibility for disabled persons, in the Spring of 2016.
However, in its Fall 2015 Statement of Regulatory, the DOJ has announced that while it expected to publish the Title II Notice of Proposed Rulemaking early in the 2016 fiscal year, it does not expect to publish the Title III Notice of Proposed Rulemaking until the 2018 fiscal year.
While the proposed amendments to these regulations have not yet been published, employers must remember that website accessibility for disabled persons is required under the Americans with Disabilities Act. Specifically, employers are required to make their websites accessible to individuals with disabilities. Additionally, the DOJ has been actively prosecuting website accessibility cases and has taken the position that all websites should be accessible.
The EEOC recently filed a lawsuit against a temporary labor agency because they violated the Americans with Disabilities Act, (ADA) when they refused to hire a recovering addict because of her disability.
According to the charges filed by the EEOC, the applicant (Ms. Cox) has been in a medically supervised rehabilitation program for four years and has not used illegal drugs since enrolling in the program. As part of her rehabilitation program, Ms. Cox uses medically prescribed methadone.
In January of 2015, Ms. Cox applied for an open production labor position with a client of the staffing agency. During the application/interview process, the manager told Ms. Cox that she had enough experience to advance to the next step of the hiring process, which included a pre-employment drug test. Ms. Cox was then given a cup and asked to provide a urine sample.
After giving the sample, Ms. Cox disclosed to the hiring manager that she was in a medically supervised methadone treatment program. The hiring manager took the cup back and said “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” The applicant repeatedly called back informing the hiring manager that she did not have any medical restrictions from performing the labor position. Yet, the company refused to hire Ms. Cox because she used methadone.
In commenting on this case, the EEOC Regional Attorney Debra M. Lawrence stated, “Medically prescribed methadone is a common and safe treatment for people recovering from drug addiction. The Commission will take action if an employer refuses to hire a qualified applicant based on unwarranted or speculative fears or biases about her disability or her medically supervised drug rehabilitation.”
The take-home lesson for employers — if your company uses pre-employment drug testing during the hiring process, an applicant’s medically supervised drug rehabilitation is a protected disability that cannot be the basis for refusing to hire an otherwise qualified applicant. Employers should take a careful look at their hiring policies (especially with respect to drug testing) to verify that they are compliant with the ADA.
A disability discrimination charge filed by the U.S. Equal Employment Opportunity Commission (EEOC) challenging the lawfulness of Pactiv LLC’s (a large manufacturer of food service/food package products) attendance policy has resulted in a $1.7 Million Dollar EEOC Class Settlement.
The Company’s attendance policy assessed “attendance points” against employees for all absences — including medical related absences. The policy also prohibited granting employees a leave of absence as a reasonable accommodation for a disability and further prohibited an extension of a protected leave of absence (like FMLA) as a reasonable accommodation for a disability. Finally, the attendance policy in question prohibited intermittent leaves of absence.
Under the attendance policy, when an employee accrued a certain number of attendance points, the employee was disciplined. Ultimately, if an employee accrued enough points, the employee’s employment could be terminated.
On October 2, 2015, the EEOC filed a lawsuit against a promotional marketing company because it refused to provide a reasonable accommodation for an employee with serious allergies.
Amanda Matherly was hired to work as a field representative at Media Star’s Baltimore headquarters. Her duties included going to outdoor festivals gathering contact information and distributing sample products. Amanda has a very severe allergy to peanuts and tree nuts. She must carry medication with her to be given immediately after exposure to prevent going into anaphylactic shock. Without this measure it could cause death the lawsuit states.
Amanda asked the company to reasonably accommodate her disability by providing vinyl gloves for handling company products that may have been exposed to nuts and to alert hotels and airlines of her allergy when making travel arrangements.
The EEOC alleges that the company refused to accommodate her disability and required her to sign a form proclaiming to waive her rights under the ADA. The company then fired her because of her disability and because she refused to sign the waiver of her rights under the ADA.
“Employers simply cannot make employment decisions based on fears or biases about people with disabilities,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr. “It would not have been a significant cost or business disruption for Media Star to reasonably accommodate Ms. Matherly, such as providing her with gloves to prevent exposure to allergens.”
Take home message for employers:
The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees unless it would cause a significant expense or difficulty for the employer. As evidenced by this case, food allergies can be considered a disability under the ADA. In addition, employers must remember that the ADA’s protections are not waivable. In other words, an employer cannot ask an employee to waive his/her rights under the ADA in order to avoid providing an employee with a reasonable accommodation.
In 2013, two Muslim truck drivers were terminated by their employer for refusing to deliver shipments containing alcohol. The reason for the employees’ refusal – the employees claimed that transporting alcohol violated their religious beliefs. Following their termination, the employees filed a claim with the EEOC and, ultimately, the EEOC filed a lawsuit against the employer.
Fast-forward to October 2015, the EEOC’s lawsuit was brought before a federal jury in Peoria, Illinois. After hearing all of the facts of the case, the jury found that the employer had violated Title VII and discriminated against the two former employees because it refused to accommodate the employees’ religious beliefs. The end result – the jury awarded the employees a total of $240,000 in damages.
The take-home message for employers: under certain circumstances, employers may be required to excuse employees from performing tasks that the employees find religiously objectionable. In order to make that determination, employers must engage in the interactive process with the employees and determine whether the employer can accommodate the employee’s request without causing an undue hardship to the employer. Failure to do so may expose the employer to a claim under Title VII or applicable state law.
Firing an employee because of a perceived disability, or for having a record of disability, violates Title I of the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. Plasma Biological Services, LLC and Interstate Blood Bank, Inc. d/b/a Plasma Biological Services, Civil Action No. 2:15-cv-02419) and the employer has agreed to settle for $60,000 which includes making significant changes to their employment practices. Press release here. http://www.eeoc.gov/eeoc/newsroom/release/10-27-15.cfm
According to the EEOC’s suit, Plasma Biological Services placed the employee on a deferred donor list after an initial screening for a plasma donation showed a viral marker for human immunodeficiency virus (HIV). After the employee’s supervisor learned that he had been placed on the deferred donor list, the employee was immediately discharged. Subsequent tests showed the employee was actually negative for HIV.
The EEOC also alleged that Plasma Biological Services maintained a policy of terminating any employee who tested positive for a viral marker. It also failed to maintain employee medical records separate from personnel files.
The take away for employers is to:
- Remember to keep employee files and medical records separate
- Managers and supervisors should not refuse to hire or fire any employee for having a disability, a perceived disability or a record of a disability
- Employers should not maintain any policy that denies employees’ rights under the ADA